Kerker v. Bocher
Decision Date | 13 April 1908 |
Citation | 95 P. 981,20 Okla. 729,1908 OK 52 |
Parties | KERKER et al. v. BOCHER et al. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the city council shall deem it necessary to pave any street or any part thereof, within the limits of a city, for which a special tax is to be levied, and such council, by resolution duly passed, declares such improvement necessary, and causes the publication of same for four consecutive weeks in a proper newspaper, the owners of a majority of the lots or parts of lots liable to taxation therefor failing within 20 days thereafter to file with the clerk of said city protest against such improvements, and proceeds to cause such improvements to be done, without the adoption of an ordinance to that end, but by adopting plans and specifications including an estimate of the cost of such improvement, and authorizing the clerk to advertise for bids therefor, the contract being accordingly let under competitive bidding, and afterwards by ordinance appraisers being appointed, and their report, after some amendments by the council, being adopted by ordinance, the abutting property owners, under such circumstances, can be estopped from questioning the validity of such assessment.
Abutting property owners, with knowledge that such paving is being done with the intention of levying a special tax upon them for payment of the same, and permitting such improvement to be done without objection to the council, and knowingly receiving the benefits, when afterwards they seek relief in equity to escape payment therefor, will be deemed to have ratified the same, and estopped from setting up any irregularity, except when it goes to the extent of jurisdiction.
When the estimate of benefits is referred to a board of appraisers, and afterward approved by the council, the remedy of one who considers himself unfairly assessed is to apply for redress to such tribunal, and, failing so to do, he will not be permitted in an action in equity to overcome such finding, especially on review in the Supreme Court, when the referee found that there was no proof to show that appraisement or assessment in any way inequitable or unjust.
Error from District Court, Pottawatomie County; B. F. Burwell Judge.
Action by J. F. Kerker and others against C.J. Bocher and others. Judgment for defendants, and plaintiffs bring error. Affirmed.
On the 6th day of September, 1904, this action was begun in the district court of Pottawatomie county, Oklahoma Territory seeking a temporary restraining order against the defendants, as mayor and city council of the city of Shawnee, to enjoin them to issue certificates or tax warrants against the several property of the plaintiffs in error, or any or either of them, abutting on Park street, until the further order of said court, and, further, to restrain the defendants C.J. Bocher and C.J. Becker, respectively as mayor and city clerk of said city, from attaching their official signatures and affixing the corporate seal of said city to such certificates or tax warrants in favor of W. M. Davis or his assigns against any property of said plaintiffs in error, and from delivering said certificates to said Davis, his assigns, and others, until a further order of said court. Said petition was supported by accompanying affidavits, and upon presentation to the county judge of Pottawatomie county the temporary injunction prayed for was granted, to become effective on the plaintiffs filing with the clerk of the district court a bond under the conditions as required by law in the sum of $1,000, to be approved by the clerk, which bond was duly executed, filed, and approved. Afterwards, on the 14th day of July, 1905, plaintiffs filed their amended petition, praying as follows:
On the 27th day of July, 1905, defendants served upon the plaintiffs their answer to the amended petition and notices of motion to dissolve said temporary injunction; said answer having been duly filed by leave of court. Afterwards plaintiffs were permitted, by way of amendment, to add an additional paragraph to the first amended answer, said paragraph being in words and figures as follows: "Plaintiffs and each of them are ready and willing to pay all special assessments that are now or may hereafter become a legal charge against their property, or the property of any of them, to the full extent of the benefits resulting to their property, or the property of any of them, from such improvement, when the same shall have been ascertained by the court, or under its direction, and now here in court offer to pay the same." On the 15th day of September, 1905, by agreement, said cause was referred to J. H. Everest, Esq., to try and determine the issues of law and fact and report thereon to the court. Afterwards, on the 29th day of March, 1906, the said referee made his findings of fact and conclusions of law in words and figures as follows:
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